U.S. v. Humphries, 91-30207

• Citation: 961 F.2d 1421
• Decision Date: 08 April 1992
• Docket Number: No. 91-30207,91-30207
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher HUMPHRIES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1421

961 F.2d 1421

UNITED STATES of America, Plaintiff-Appellee, v. Christopher HUMPHRIES, Defendant-Appellant.

No. 91-30207.

United States Court of Appeals, Ninth Circuit.

Submitted April 8, 1992 ^*.

Decided April 15, 1992.

Mark Bauer, Bauer & Perron, Great Falls, Mont., for defendant-appellant.

Robert J. Brooks, Asst. U.S. Atty., Butte, Mont., for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana.

Before: BROWNING, WRIGHT and FERNANDEZ, Circuit Judges.

PER CURIAM:

Christopher Russell Humphries was arrested for pointing a handgun at a man with whom he had been arguing and then firing it next to the man's head. Humphries pled guilty under 18 U.S.C. section 922(g) to possessing a firearm despite having been convicted of a felony. Humphries argues he was improperly sentenced pursuant to Sentencing Guidelines section 2K2.1(c)(2) rather than 2K2.1(a)(2).

Under the version of the Guidelines in effect in May 1991 when Humphries was sentenced, see 18 U.S.C. § 3553(a)(4), section 2K2.1(a)(2) provided a base offense level of 12 for defendants convicted under 18 U.S.C. section 922(g). Because Humphries' criminal history category was V, a base offense level of 12 minus two levels for acceptance of responsibility ¹ would have resulted in a sentencing range of 21-27 months. See U.S.S.G. Ch. 5, Pt. A.

Section 2K2.1(c)(2) provided: "If the defendant used or possessed the firearm in connection with commission or attempted commission of another offense, apply § 2X1.1 ... in respect to that other offense, if the resulting offense level is greater than that determined above." The district court found Humphries had used the firearm in connection with an aggravated assault and accordingly applied section (c)(2). Section 2X1.1 instructed the court to apply the base offense level for the other offense--in this case, aggravated assault. The guideline for aggravated assault provided for a base offense level of 15, to which five levels were added because the gun was fired. See U.S.S.G. § 2A2.2(a) & (b)(2)(A). Subtracting two levels for acceptance of responsibility, Humphries' total offense level was 18, and the resulting sentencing range was 51-63 months. See U.S.S.G. Ch. 5, Pt. A. The court departed downward and sentenced Humphries to 48 months.

Humphries first contends the term "another offense" in the phrase "in connection with commission or attempted commission of another offense," U.S.S.G. § 2K2.1(c)(2), means another offense of which the defendant was convicted, rather than merely conduct that would constitute such an offense. Cf. U.S.S.G. § 7B1.1(a) (describing probation and supervised release violations based on "conduct constituting" a federal, state or local offense). Because he was not convicted of aggravated assault, he contends the district court erred in applying section (c)(2).

We have not hesitated to apply guidelines that require the "commission of another offense" to defendants not convicted of the conduct constituting the other offense. See, e.g., United States v. Durham, 941 F.2d 858, 863-64 (9th Cir.1991) (U.S.S.G. § 5K2.9 provided that "[i]f the defendant committed the offense in order to facilitate or conceal the commission of another offense," the sentencing court could depart upward; court approved upward departure even though defendant had not been convicted of the other offense).

The commentary to section 2K2.1 indicates the Sentencing Commission anticipated the guideline would be used to increase sentences in cases in which the defendant used a firearm to commit a crime that otherwise could not be prosecuted under federal law:

The firearm statutes often are used as a device to enable the federal court to exercise jurisdiction over offenses that otherwise could be prosecuted only under state law. For example, a convicted felon may be prosecuted for possessing a firearm if he used the firearm to rob a gasoline station. In pre-guidelines practice, such prosecutions resulted in high sentences because of the true nature of the underlying conduct. The cross reference at § 2K2.1(c)(2) deals with such cases.

U.S.S.G. § 2K2.1, comment. (backg'd). It would be anomalous to hold the Commission intended the sentencing court to consider the underlying conduct only if the defendant were previously convicted of it in state court, thus limiting the reach of the federal court, when the guideline was intended...